California Governor Directs State to Develop Near-Future Zero-Emission Vehicle Sales and Operation Mandates

On September 23, 2020 California Governor Gavin Newsom issued Executive Order N-79-20, expressing the goals that:

  • by 2035, 100% of all in-state sales of new passenger cars and trucks will be zero-emission vehicles (“ZEV”);
  • by 2045, 100% of all medium-and heavy-duty vehicles in the state be zero-emission for all operations where feasible (and the same goal for drayage trucks by 2035); and
  • by 2035, the State will transition to 100% zero-emission off-road vehicles and equipment (where feasible).

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California Air Resources Board Hosts Advanced Clean Cars Workshop

Earlier this month, the California Air Resources Board (CARB) hosted an Advanced Clean Cars (ACC) II Workshop to obtain public input on CARB’s development of ACC II regulations. The ACC II rules would be meant to contribute to meeting California’s carbon neutrality targets, advancing zero emissions vehicle (ZEV) technology, and reaching ozone targets under California’s State Implementation Plan. The workshop materials note that CARB views a need for deep reduction to light-duty vehicle emissions to address climate and air quality issues.

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U.S. Legislators and Regulators Bring New Attention to PFAS

Late summer this year has brought a surge of activity related to per- and polyfluoroalkyl substances (PFAS). The U.S. Environmental Protection Agency (EPA) research office reported at an industry conference last week that it was evaluating ways to divide PFAS compounds into categories for purposes of risk assessment and risk management. This aligns with the approach supported by industry groups but conflicts with demands from environmental advocates that EPA study each compound separately. Because of the complexity and number of individual PFAS molecules, which number in the thousands, categorization would likely expedite the review process.

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U.S. Fish and Wildlife Service Proposes Framework for Endangered Species Act Critical Habitat Exclusion Analysis

On September 8, 2020, the U.S. Fish and Wildlife Service (FWS) issued a proposal under the Endangered Species Act (ESA) addressing how FWS will conduct discretionary analyses to determine whether to exclude land that otherwise would be constrained from use due to a critical habitat designation. (more…)

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Third Circuit Limits CERCLA Liability Shield

On September 8, 2020, in New Jersey Department of Environmental Protection (NJDEP), et al. v. American Thermoplastics Corp., et al., the U.S. Court of Appeals for the Third Circuit limited the liability shield a potentially responsible party (PRP) receives when it settles a cost recovery action with a state under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court held that “a settling-PRP is protected only insofar as a consent decree and a contribution action address the same matters. In effect, our decision encourages a PRP to settle with both the relevant State and Federal Governments.”

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EPA Enforcement Priorities in U.S. Pesticide Law

An ELI & Sidley Austin LLP Co-Sponsored Webinar

The U.S. Environmental Protection Agency has long governed federal pesticide law under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA has a broad reach, overseeing conventional insecticides, but also plant growth regulators, antimicrobial surface disinfectants, pesticide “devices” like germicidal ultraviolet light systems or ozone generators, and more. Currently, EPA has continued to stress FIFRA as a leading priority area in national enforcement guidance.

Under FIFRA, EPA has specific authority to regulate products meant to provide surface disinfection from bacteria, microbes, and viruses. Indeed, products making claims to mitigate SARS-CoV-2, the novel coronavirus causing COVID-19, have fallen under intense scrutiny from EPA recently. Meanwhile, the focus on FIFRA compliance issues is increasingly intersecting with EPA’s growing scrutiny of imports to the U.S. Import reviews target traditional pesticide products, and now also center on nontraditional items such as UV lights and air purifiers.

Given these trends, questions are arising over EPA’s enforcement priorities in U.S. pesticide law. What are EPA’s strategies for enforcing federal pesticide law? What new or unexpected directions is the agency focusing on, especially in regards to compliance of nontraditional products, including those created in response to COVID-19? Expert panelists will address these questions, provide practical guidance on compliance with FIFRA, and explore FIFRA enforcement priorities.

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EPA Issues Final Power Plant Wastewater Rule

On August 31, 2020, the U.S. Environmental Protection Agency (EPA) announced a final rule addressing effluent concentration limits for certain metals in power plant wastewater under the Clean Water Act. The Steam Electric Reconsideration Rule (SERR) changes several aspects of the coal-fired power plant effluent limitations included in the 2015 Effluent Limitations Guidelines and Standards rule, including the limits for two waste streams: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. (more…)

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EPA Publishes Toxic Substances Control Act Risk Evaluation Scope Documents and List of Businesses Subject to Fees

On September 4, 2020, the U.S. Environmental Protection Agency (EPA) published scope documents for 20 high-priority chemicals that will undergo risk evaluation under the Toxic Substances Control Act (TSCA). The scope documents set frameworks for evaluating these 20 chemicals in light of their conditions of use, hazards, exposures, and potentially exposed or susceptible subpopulations. TSCA directs EPA to complete risk evaluations for these 20 chemicals over the next three years.

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California NOx Omnibus Regulation Requires 90 Percent NOx Reduction by 2027

On August 27, 2020, the California Air Resources Board (CARB) approved the Heavy-Duty Low NOx Omnibus Regulation (Omnibus Regulation), which requires heavy-duty truck manufacturers to achieve stringent nitrogen oxide (NOx) emission standards. The Omnibus Regulation follows the board’s June 2020 approval of the Advanced Clean Trucks regulation, which requires medium- and heavy-duty truck manufacturers to increase the sales of zero-emission models. Both rules require that certain compliance milestones be met by 2024.

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SEC Updates Disclosures Required by Regulation S-K — Impact on Environmental Disclosure

On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) adopted amendments to “modernize” its rules requiring disclosure about a company’s business description, legal proceedings, and risk factors. The SEC amended these items to make them more clearly principles-based as well as to enhance the readability of disclosures, discourage repetitive and immaterial disclosures, and reduce the compliance burden on companies. The amendments were adopted substantially as proposed by the SEC in August 2019 with certain modifications. With regard to environmental matters, one of the amendments broadens disclosure about the material effects of environmental compliance to encompass the material effects of compliance with all laws, while the other changes the threshold for disclosure of environmental legal proceedings involving the government.

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